The List GROWS....

[CrowsNest]

Interesting. You might want to make your solicitation for co-fiers more prominent, it is rather buried in there.

I doubt you will convince a judge the means of implementation (global lock, email disables) are unreasonable given what the WMF claim these ban are supposed to prevent.

I think there are a few things a judge will be interested in though, namely the policy of giving no reason, no notice of an ongoing investigation, and no possibility of appeal. Indeed, as far as I was aware, the policy is to ignore any and all communications from globally banned users, so you will probably receive no reply at all, since doing so would immediately show the WMF's own procedures are not being followed and therefore are probably not fit for purpose.

With the adoption of the GDPR in the EU (which also applies to case where there data itself is held outside the EU), then there is absolutely a case to be made (certainly for EU based victims) that they have the right to see all pertinent data held on a user (although this still may not include emails from complainants or between staff unless it contains said data).

Also, unless the WMF can come up with a reasonable excuse, the GDPR gives a good case that such bans do not need to be announced or registered on a public wall of shame, and should be removed if a victim requests it.

You may want to reconsider the narrow focus on defamation - not sure how it works in the US, but in the UK, as far as I know it requires proof of harm (and this doesn't include mere distress, unless rising to harassment, which this wouldn't). In the UK, it is well established that any contract is null and void if the terms are unreasonable, and that is likely the best route to defeating any global ban in court, since it is after all just a part of the ToU.

Obviously, good luck and keep us informed (although telling us all your thoughts and strategy might not have been the wisest thing to do.....)

[Abd]

Interesting. You might want to make your solicitation for [co-filers] more prominent, it is rather buried in there.

There are at least two globally banned users who comment here, besides me. However, this is not yet a broadcast appeal. I would do that by different means.

The implementation makes it difficult for globally banned users to contact each other, because a couple of years ago, the WMF also shut down mail *to* the banned user, instead of leaving that decision to the user. With the present software, a global lock is public. So too is a non-Office lock, but the latter can be appealed, and will commonly be a community decision. Sometimes it isn't, I've seen unilateral locks based on a particular steward's obsessions. In that case, it is possible that the steward would be liable.

There is an interesting legal question, can a community be liable for what it does? How would that work? The WMF hides behind the community, generally, but the WMF creates a situation where a mob of anonymous users may abuse individuals or organizations, leaving them no recourse. I think they could be held responsible for that, in addition to the liability of the individuals.

The WMf has been running for years on the theory that they have Section 230 immunity as a "service provider," but there are some cases where they "get their hands dirty." SanFranBans are an example, as is the Monkey Selfie case. I think they refused a lawful takedown notice (based on their opinion about the selfie that ignored the possibility of co-ownership of selfies, which would then allow the photographer to manage the copyright. The question about the monkey's copyright becomes moot, in that case. Commons ignored the opinion of a WMF attorney in favor of their own primitive "a little knowledge is a danagerous thing" opinions, reduced to a rule that "the owner is the one who presses the button," which is contradicted in case law, as to exclusive ownership. So they abandoned the "precautionary principle" when they wanted to, and so they became, my opinion, liable.

Commons, on the Main Page, lies about the number of free images. *Many* of those images may be non-free. Periodically, I saw images removed from Wikiversity by the Commons bot because they had been deleted on Commons, years after they were uploaded, and the reasons were sometimes quite pedantic, but the "precautionary principle." There is no reliable process to vet all images, so they are claiming what they cannot, as Commons is structured, even reasonably guarantee.

I doubt you will convince a judge the means of implementation (global lock, email disables) are unreasonable given what the WMF claim these ban are supposed to prevent.

The issue is not the right of the WMF to choose to ban a user, they have that right, the issue is the process. Actions are reasonable or unreasonable depending on context. By the way, there is a right of jury trial in Federal Court. If that is exercised, a judge will rule on matters of law, not of fact, and whether an implementation is reasonable or not would be a matter of "fact."

I think there are a few things a judge will be interested in though, namely the policy of giving no reason, no notice of an ongoing investigation, and no possibility of appeal. Indeed, as far as I was aware, the policy is to ignore any and all communications from globally banned users, so you will probably receive no reply at all, since doing so would immediately show the WMF's own procedures are not being followed and therefore are probably not fit for purpose.

There is no "policy" of no response, and I have just read a response to another SFB, both before an attorney letter and after. As might be expected, the attorney did not seem to be familiar with the legal issues and was arguing against the ban itself. That's not necessarily wrong, merely not as strong -- in my opinion, but IANAL -- as a libel argument over the announcement, if that announcement is not necessary for protection.

They routinely ignore emails from users, probably relying on most users being naive and powerless. They did not ignore an email from a lawyer, who noted in the mail that a separate copy was being sent by snailmail. They responded, immediately. At this point, I have sent an initial email -- ignored -- and now a certified demand letter, with roughly what a lawyer would write. One page. I rather doubt it will be ignored, but ... if it is, I gave them 30 days, and I'll have time to file an action and serve them with it. I'm not attached. If they settle before that, I'll be blazing a trail for others, whether or not they join.

The only question I have is the competence of their legal counsel -- and whether or not they will follow that counsel. I think I know what a good lawyer would tell them.

The issue of possible WMF error in making such decisions is more complex and difficult. Setting up a "final, no appeal" process for a ban based on secret complaints and analysis of unknown cogency -- instead of, say, providing for arbitration -- may be the target of a successful challenge. The WMF takes actions that can result in defamation of individuals, and appears to claim that it is immune to legal action over that. I don't think so. The right to act without notice may be acceptable if not announced except to the user, and especially if some appeal process exists.

With the adoption of the GDPR in the EU (which also applies to case where there data itself is held outside the EU), then there is absolutely a case to be made (certainly for EU based victims) that they have the right to see all pertinent data held on a user (although this still may not include emails from complainants or between staff unless it contains said data).

I am demanding the identity of those I suspect libelled me. I expect that they will claim privacy protection for complaint mails, and a decision will be made by the court, often by highly restricted disclosure only to lawyers. By that time, they will be spending substantial sums. As well, at that point, I may need to retain a lawyer. That's possible, and I am trained to proceed on possibilities. I'm not betting the farm on this, not that I have a farm!, so I don't need to estimate probability. I was funded to cover Rossi v. Darden, by the public (not by any party). Someone may be willing to represent SFBs pro bono, but there are already lawyers involved with others.

Also, unless the WMF can come up with a reasonable excuse, the GDPR gives a good case that such bans do not need to be announced or registered on a public wall of shame, and should be removed if a victim requests it.

Bingo! I would go a little further. They should not be announced at all, but there is a weak excuse of software limitations. The fact is that they could simply change the user password with the same effect as a global lock, but completely invisible (as the software is, they would probably need to disable email, to prevent the user from recovering it. It would be a very simple software change that would allow the site and users to email, but not allow a password recovery mail

However, none of that would be necessary if the user agrees to refrain from editing and emailing using the account, and doesn't use it, which they could monitor by bot. (And then they could disable access if the user actually edits after notice. As well, notifying the complainants is not necessary. A form mail could be used that does not validate the complaint, but lets the user know that it has been considered.

You may want to reconsider the narrow focus on defamation - not sure how it works in the US, but in the UK, as far as I know it requires proof of harm (and this doesn't include mere distress, unless rising to harassment, which this wouldn't). In the UK, it is well established that any contract is null and void if the terms are unreasonable, and that is likely the best route to defeating any global ban in court, since it is after all just a part of the ToU.

Yes, that is UK law; the overall situation involves clear harm. In the U.S., distress is allowed. There has, overall, been clear defamation occurring, but most of it does not involve the WMF, except under a theory that I will assert of "attractive nuisance." I.e., if someone operates a bulletin board, and could remove notes placed on it, but does not do so on demand with a claim of libel, they can become liable.

The legal theory that Wikipedia has been operating on is that they are merely a service provider. That protects them from a priori liability, but does not protect them from suit for allegedly harmful failure to remove on demand, and this applies to copyvio as well as libel.

Obviously, good luck and keep us informed (although telling us all your thoughts and strategy might not have been the wisest thing to do.....)

Yeah, I considered that. It is not "all my thoughts and strategy," however.

I am not only acting for my own benefit but to establish precedents and create available recourse for others. It is not my goal to destroy the WMF or Wikipedia, but to create process to make crowd-sourcing and management more reliable. Essentially, for that to be more intelligent than mob rule, there must be responsible supervision of the process, and rule of law, which the mob vigorously resisted. The WMF could facilitate such process, without actually controlling it and becoming liable for errors. Such process could be private -- or public, if affected users waive privacy.

What my SFB demonstrated was the defacto power of a faction that commonly loses when confronted before the community (with wider participation) to nevertheless exert undue control. It apparently took a handful of users, two of them with admin tools, cooperating with others actually banned or known to be highly disruptive, to move the WMF to do what seemed very unlikely. This kind of cooperation has long been suspected. Some level of cooperation has been reasonably obvious, but the Arbitration Committee was head-in-the-sand. Or actually complicit, in some cases it is possible.

"Max," here, claimed there were six complainants, and real-named all but one or two. I already suspected that list. There was a missing name, Darryl L. Smith, twin brother of Oliver D. Smith. The two of them together are "Anglo Pyramidologist," and unless Oliver is telling the truth in claiming that he was lying before, it was all him, "there is no brother," both of them would have been involved. The only question I have is whether or not "Max" is Darryl or is a third person, which I consider possible.

There is no lawsuit filed as yet. If there is, I expect I will stop commenting on the case. I have already received media inquiry; if a case is actually filed, I'd expect substantially more. I may be looking for volunteers as process servers, for individuals in Rhode Island, New York, and the United Kingdom, and possibly in California. It can be anyone over 18 who is not a party to the case. I have not yet filed demand letters with the individual parties possibly involved. Personal service may not be necessary, there are alternatives.

[Graaf Statler]

It is not my goal to destroy the WMF or Wikipedia, but to create process to make crowd-sourcing and management more reliable.

But there is a huge change you do, Abr. Because the legal construction of WMF/Wikipedia int. is so weak, I am pretty sure because of a domino effect the whole card house collaps. Big change it ends up in a tsunami of bad press. Every trail of this kind is a huge risk for WMF, because it generates (international) publicity, and can be the end of the good will and good reputation of Wikipedia and generate other trails.

[Abd]

A little bump in the road. US Federal Court rules require a minimum of $75,000 to be in controversy. I can declare that level, it is within reason (or even more), but if a final award is less than that, "the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff." There are various steps I may take to reduce the likelihood of that denial and the award of costs to a defendant who is found liable for a lesser amount.

I am also considering filing in California, which could reduce the WMF costs, but I am still considering the effect on claims against defendants in other states. As well, there are many actions by other defendants that could raise damages. If other plaintiffs join, the potential recovery rises. If the action is extended to include the "attractive nuisance" claim, again, potential recovery rises. IANAL.

Some of the libels are clearly willful attempts to malign, and so punitive damages are possible. Others amount to negligence. So a question for a lawyer: if an actor's negligence results in a greater damage from an intentionally maligning, the negligent actor effectively aiding and abetting the maligner, providing the libel with teeth, would damages be joint and several for collection, or would they be separated out? I can see a lot of problems. Suppose that one of the additional defendants is properly served, but does not respond, so a default judgment is entered. That could then satisfy the overall award requirement, but how does this affect other defendants?

My opinion at this point is a great deal could depend on conduct of the case, in court. If reasonable settlements are rejected, the court may look more dimly at the rejecting party, when it comes to considering costs. California law -- I lived in California -- has rules about rejected settlements. If a party rejects a settlement offer and then obtains more in an award.

WTF am I doing? I've been successful in court, but it was also a pain in the neck. Actually, in the head, reading case law gave me migraines. I may be able to do better now, not GAF.

[Abd]

It is not my goal to destroy the WMF or Wikipedia, but to create process to make crowd-sourcing and management more reliable.

But there is a huge change you do, Abr. Because the legal construction of WMF/Wikipedia int. is so weak, I am pretty sure because of a domino effect the whole card house collaps. Big change it ends up in a tsunami of bad press. Every trail of this kind is a huge risk for WMF, because it generates (international) publicity, and can be the end of the good will and good reputation of Wikipedia and generate other trails.

Graaf, there is a lot of inertia behind Wikipedia. However, yes, if the WMF insists on stonewalling this, they will be taking a number of risks, whether I am successful in court or not -- and there are levels of success. Surviving a Motion to Dismiss would be one. I think I know how to avoid that, and will expect to consult with professional counsel before filing. Today I'm researching serving defendants outside the U.S., I'm getting a quote from a process server. There are other methods that can be cheaper, but they are not so reliable.

I still need to send those demand letters. There are some tricky issues I'm finding.

[AndrewForson]

Presumably in order to implement their "global" ban, the WMF will have circulated some information about the subjects to their chapters around the globe. In Europe, anyone (citizen or not) has a right to see, and, under some circumstances, to correct information about them personally held by any institution, public or private. A global ban subject could therefore make a data subject request to each of the European chapters, to see what the WMF was saying about them. Bear in mind that, in the UK at least, if that information is defamatory, the "publication" could consist of transferring the defamatory material from the US to the European entities and their staff: it does not have to be made available to the public at large to constitute publication. Furthermore, in the UK a libel action does not have to show special (ie directly identifiable monetary) damages, "serious harm" to reputation is in itself enough. Proceeding against one of the European chapters and starting proceedings in a libel-friendly jurisdiction such as England would be fun to watch. However, I Am Not A Lawyer, etc.

[Graaf Statler]

Like I said before the legal construction of the Wiki mouvement is extreem weak, especially as far as europe is concerned. And yes, you can sue a chapter, you can sue whoever you want in Europe, and you properly win. But what do you win? Because almost for sure the whole house of cards collaps, because they are running out of almost every Dutch law you can you imagine. Our copyright law, the European privacy law, they have trolled what can be considered as fraud, that Global lock is defamation, etc., where do you end up?
Arb said something about migraine, can you imagine how a trail like this draw the attention of the press? The Dutch and the International? And what do you win at the end? It only causes a tremendess chaos, and you have destroyed the life of a bunch of fools.